A back door entry into public employment is violative of Articles 14 and 16 of the Constitution of India and no rights will therefore flow from such an entry. There are however cases where there is an exploitation of workforce by a public body by keeping such workers temporary for years with an object of depriving them the status of permanency. Such unfair labour practice, as indicated under Item 6 of Schedule IV of Act of 1971, is itself a negation of Article 14 of the Constitution. Once such an exploitation is proved, then the power of the Industrial adjudicator to take an affirmative action is not taken away.

Rule. Rule made returnable forthwith. Respondents waive service. Taken up for disposal.

2. The Petitioners, nineteen in number, challenge the Award passed by the Industrial Court, Pune dismissing their Complaint (ULP) No. 177 of 2005.

3. The Respondent No.1 is a local authority constituted for the Pimpri Chinchwad area, under the provisions of Bombay Provincial Municipal Corporation Act, 1949. The Respondent No.2 is the Municipal Commissioner. Respondent No.3 is the Medical Officer of Health in the services of the Municipal Corporation. The Respondent – Corporation has a public hospital known as Talera Hospital at Chinchwad. The Petitioners were initially working on Class IV post in Talera Hospital, through a contractor M.P. Enterprises. The contract with M.P. Enterprises came to an end by September 2004 and thereafter, the Petitioners continued to work for seven months with the Respondents, and apprehending their discontinuance, they filed a complaint (ULP) No. 177 of 2005.

4. The complaint was filed seeking permanency in services of the Respondent – Corporation and for parity in wages with other Class IV employees. In the complaint, it was contended as follows : the provisions of Bombay Industrial Employment (Standing Orders) Act, 1946 (Standing Orders) Act are applicable to the Respondents. In the Talera Hospital, there are 47 permanent Class IV employees. There were 14 posts of Ward Boy, 17 posts of Ward Aayas, 7 posts of Safai Kamgar, 3 posts of Laborers, 1 post of Peon, 4 posts of Mehetar and 1 of Kachara Kuli. Considering the heavy load of workload due to 100 beds of indoor patients and 500 OPD, the Respondents appointed M.P. Enterprises through which the Petitioners were working. The contract with M.P. Enterprises ended by September 2004. By the end of September 2004, there were 47 permanent Class IV employees and 23 contract laborers as Class IV employees through M.P. Enterprises. The Petitioners personally met the Respondent Nos. 2 and 3 on or about 20 September 2004 who assured them that the Petitioners will be absorbed in service however, will have to go through some procedure and other legal formalities. The Respondent Nos. 2 and 3 asked the Petitioners to continue to work in Talera Hospital as probationers and promised to give them appointments. Thereafter, the Petitioners continued to work without any appointment orders, with an expectation that they would get due appointment orders as permanent employees and since they apprehended termination, they filed the complaint. After completion of three months uninterrupted service as probationers, they had become permanent and the action of the Respondents was in breach of 4-A of the Standing Orders and by not giving effect to this legal provision, the Respondents committed unfair labour practice as per Item 9 Schedule IV of M.R.T.U. & P.U.L.P. Act, 1971 (Act of 1971). The Petitioners were being treated differently that the other Class IV employees and therefore, there was a breach of Item 5 of Schedule IV of M.R.T.U. & P.U.L.P. Act. Accordingly, the Petitioners sought permanency in services with all consequential benefits.

5. The Respondents filed their reply and opposed the reliefs sought. It was contended as follows : the Petitioners were never in direct employment of the Respondents. They were employees of a contractor and therefore, there was no question of any employer employee relationship. The entry of the Petitioner was a back door entry and upon conclusion of the arrangement with M.P. Enterprises, the Petitioners were working on casual basis. There was no such assurance or undertaking that the Petitioners will be employed on permanent basis. In fact, permanent post cannot be filled bypassing the recruitment procedure. The Respondents committed no unfair labour practice. The Standing Orders are not applicable to Talera Hospital as it is not an Industrial Establishment. The arrangement with the contractor had come to an end and bypassing the recruitment p